12.31.15
Employment-Based Immigration to be Impacted by DHS Proposals As we close out a year poised for much anticipated immigration reform, we are anticipating that the Department of Homeland Security (DHS) will be publishing in the Federal Register today (December 31, 2015), a laundry list of changes that will impact the employment-based immigration world. DHS has entitled this "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers." Among these changes are DHS's treatment of employment authorization documents (EAD), grant of grace periods to some nonimmigrants, and also codification of some of the current practices regarding H-1B extensions. Once these proposals are published, there is a sixty-day comment period. While this is a good foretaste of what is to come, it is not law yet. Below are some highlights:
- More H-1B Time. Normally an individual can only be in the United States for up to six years in H-1B status. Exceptions that have been in practice, and which are now being set forth in regulations, include the following:
- Any 24-hour period of time outside of the U.S., documented by the individual, can be "recaptured" and does not count towards the six years.
- Anyone with a labor certification that has been pending for more than 365 days can file for an additional one year of H-1B time, and can continue to file for such one-year extensions until the labor certification expires (180 days after its approval and no I-140 immigrant petition has been filed) or a final decision is made to deny/revoke/invalidate the labor certification, deny/revoke the I-140, or grant/deny the I-485 adjustment of status application. Extensions are allowed even if the H-1B petitioner is not the same petitioner as the labor certification or the I-140. Extensions are also allowed up to 180 days in advance.
- Anyone with an approved I-140, but who is still waiting for a visa number to file the I-485, may file for three-year extensions of H-1B status.
- Such extensions do not allow spouses who are in their own H-1B statuses to extend beyond the sixth year unless the spouses have their own long-pending permanent residency processes in play.
- Job flexibility, also commonly referred to as "portability." The practice has been to allow individuals who have an approved labor certification, approved I-140, and an I-485 pending for more than 180 days to change jobs or even employers so long as the new job is of the "same or similar occupation." (Discussion concerning this term of art has been previously published in the Federal Register. Please also see our firm's entry on 11/24/2015.) This is being extended to allow individuals to move over to self-employment, but only if the occupation is of the "same or similar occupation" as the underlying labor certification. The petitioner does not need to be the same. The new I-485 will have an addendum to help USCIS make the "same or similar occupation" determination and will require the new petitioner to have filed an I-140 and to complete an attestation concerning the "same or similar occupation" nature of the offered position.
- Definition of H-1B cap exempt employers clarified and expanded. Certain employers are exempt from the H-1B cap count, i.e., they do not have to go through the lottery. These have been (1) institutions of higher education or related or affiliated entities or (2) nonprofit research organizations or government research organizations. DHS is recognizing that individuals who may be working at such organizations and where their work is furthering the purpose of the qualifying organization may also qualify for the cap exemption, i.e., they do not have to wait for an H-1B visa number to become available to them which translates into "no lottery."
- 60-day grace period for certain nonimmigrants. For the longest time, people were under the misimpression that even if one's employment ended, one would have a grace period of 60 days to find a new petitioner. The current state of affairs is that once the employment relationship ends, the status ends. There is no grace period. The proposed rules would allow for a one-time grace period of up to the shorter of either 60 days or when the status was supposed to end. This would apply to those in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN statuses. During the grace period, individuals would not be eligible to work - not even those who are moving from one H-1B employer to another. (This is different from what most attorneys are advising currently.)
- Emergency employment authorization for one year under certain circumstances. Individual (1) must have maintained E-3, H-1B, H-1B1, O-1, or L-1 status, (2) must be beneficiary of approved EB-1, EB-2, or EB-3 I-140 petition, (3) does not have an immediate visa number available (i.e., cannot file the I-485 or seek consular processing), and (4) must demonstrate compelling circumstances. While DHS wants to retain flexibility in its discretion, examples of compelling circumstances include medical emergencies, workers facing retaliation from employers for participating in protected conduct, or significant business or economic harm to the individual. Extensions can be obtained if the individual can continue to demonstrate the compelling reasons.
- H-1Bs and licensing requirements. One-year H-1B approvals will be given where the H-1B position requires a license to practice so long as the application for the license has been filed at the time of filing the H-1B petition.
- EAD extensions. Currently when someone's employment authorization document expires, with the exception of those applying for a STEM OPT extension, the authorization terminates even if there is a pending application. The proposals would allow for a 180-day extension. However, DHS would do away with the upper limit of a 90-day turn around time for processing such applications. This extension will not apply to EADs for H-4s or for spouses of L-1s, E-1s, and E-2s.